ARTICLE 21:  No person shall be deprived of his life or personal liberty except according to procedure established by law

Salient Features:

• This right is available to all persons, not only to citizens; unlike the rights granted by Article 19, which are available only to citizens.
• This right is available against all persons, not only against the State; unlike Article 14 which is available only against the State.
• This right is not absolute, like all other Constitutional and legal rights. It can be taken away by a procedure established by law.
• Article 21 has two limbs: Prohibition against deprivation of life and prohibition against deprivation of personal liberty.

This right can be curtailed by a procedure established by law. What kind of procedure can curtail or take away this right? Is the prescription of any sort of procedure enough or must the procedure comply with any particular requirements?

The Supreme Court answered this question in 1978 in Maneka Gandhi v. Union of India in the following way:

• The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.
• It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.

What is the remedy when the right to personal liberty is taken away or violated?

• Article 32 guarantees the right to move the Supreme Court by appropriate proceedings whenever the right to personal liberty is taken away or violated, either by the State or by a private person.
• The appropriate proceedings in case of a breach of the right to personal liberty would be to move the Supreme Court to issue a writ of Habeas Corpus.

This Writ can be issued against both public authorities and individuals.

Examples of unlawful detention by the State:

• When a detained person is not produced before a Magistrate within 24 hours, the detention is not in accordance with the procedure laid down and is therefore unlawful
• When a person is arrested even when he had not violated any law, this arrest and the consequent detention is unlawful.

Examples of unlawful detention by private persons

• When someone causes wrongful confinement as described in section 340 IPC, it is punishable by section 342 IPC, but this section provides no remedy to the wrongfully confined person. A writ of Habeas Corpus is the quickest and the most effective remedy for the detained person.
• Similarly, when someone causes kidnapping or abduction to confine a person as described in section 365 IPC, he is punishable with imprisonment upto 7 years, but this section provides no remedy to the kidnapped or abducted person. Once again, a writ of Habeas Corpus is the remedy.
• IPC punishes the wrong-doer but provides no relief to the victim. It has no provisions for the release of the detained person. However, the right to personal liberty being a Fundamental Right, the highest Court in the country can be directly moved for its enforcement, that is, for the release of the detained person

The expression “personal liberty” as appearing in Article 21 is of the widest amplitude.

• It covers a variety of rights which go to constitute the personal liberty of a man. Some of these rights have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19, viz the right to move freely throughout the territory of India, granted by Article 19(1)(d).
• It was held by the Supreme Court in Satwant Singh v. Union of India [1967 SC] that “Personal liberty” within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law.

Facets of the right to life:

The right to live does not include right not to live, i.e., right to die.

The Supreme Court ruled so in 1996 in Smt. Gian Kaur v. State of Punjab with the following arguments:

• Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life be read to be included in ‘protection of life'.
• Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.
• The “right to die”, if any, is inherently inconsistent with the “right to life‟ as is “death‟ with “life‟.

(1) Right to Live with Dignity

• In Bandhua Mukti Morcha v. UoI [1984] the Supreme Court held that the right to life under Article 21 means the right to live with dignity, free from exploitation.

(2) Right to Die with Dignity

In Common Cause v. Union of India [2018] the Supreme Court held that the right of a dying man to die with dignity when life is ebbing out constitutes a right to live with dignity. It was further held as under:

• In case of a terminally ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.

• A competent person who has come of age has the right to refuse treatment even if such decision entails a risk of death. Where a patient has already made a valid Advance Directive which is free from reasonable doubt specifying that he/she does not wish to be treated, then such directive has to be given effect to.

• The right to live with dignity also includes smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery.

(3) Right to Privacy

In Justice K.S. Puttaswamy v. Union of India [2017] the Supreme Court held as under:

• The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21.

• “Right to privacy of an individual” is essentially a natural right, which inheres in every human being by birth. • It is indeed inseparable and inalienable from a human being. In other words, it is born with the human being and extinguishes with him.

• The “right to privacy“ emanates from two expressions of the Preamble, namely, “liberty of thought, expression, belief, faith and worship” and “Fraternity assuring the dignity of the individual”

• It also emanates from Article 19(1)(a) which gives to every citizen “freedom of speech and expression” • It further emanates from Article 19(1)(d) which gives to every citizen “a right to move freely throughout the territory of India”

• Lastly, it emanates from the expression “personal liberty” under Article 21.

(4) Right to Protection of Reputation

In Subramanian Swamy v. Union of India [2016] the Supreme Court held as under:

• Protection of reputation is a fundamental right. It is also a human right.

• Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others‟ right to person or reputation.

• Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom.

(5) Rape is a violation of the Right to Life

In Bodhisatwa v. Subdhra Chakroborty [1996] it was held by the Supreme Court held that rape is a crime against basic human rights and is violative of the victim‟s most cherished right, namely, right to life which includes right to live with human dignity. Thus, “rape” amounts to violation of the Fundamental Right guaranteed to a woman under Article 21 .

The Supreme Court summed up the extended scope of article 21 in 2014 in National Legal Services Authority v. Union of India in the following way:

Scope enlarged to diverse aspects

The meaning of words “life‟, “liberty‟ and “law‟ in Article 21 have been considerably enlarged by judicial decisions to such diverse aspects as:

• health hazard due to pollution in Mehta M.C. v. Union of India [1987 SC]
• health hazard from harmful drugs in Vincent Panikurlangara v. Union of India [1987 SC]
• handcuffing of prisoners in Aeltemesh Rein v. Union of India [1988 SC]
• right of speedy trial in Raghubir Singh v. State of Bihar [1987 SC]

Directive Principles resurrected as Fundamental Rights:

Many of the non-justiciable Directive Principles embodied in Part IV of the Constitution have now been resurrected as enforceable Fundamental Rights by the magic wand of judicial activism, playing on Art. 21:

• Right to pollution-free water and air in Subhash Kumar v. State of Bihar [1991 SC]
• Right to food, clothing, decent environment and even protection of cultural heritage in Ram Sharan Autyanuprasi v. UoI [1989 SC]
• Right of every child to a full development in Shantistar Builders v. Narayan Khimalal Totame [1990 SC]
• Right to education in Mohini Jain v. State of Karnataka [1992 SC], but not for a professional degree in Unni Krishnan J.P. v. State of A.P. [1993 SC]

Negative duty changed to positive obligation

• Maintenance and improvement of public health in Vincent Panikurlangara v. UoI [1987 SC]
• Elimination of water and air pollution in Mehta M.C. v. UoI [1987 SC]
• Rehabilitation of bonded labourers in Bandhuva Mukti Morcha v. UoI [1984 SC]
• Providing human conditions if prisons and protective homes in Sher Singh v. State of Punjab [1983 SC]